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THE TRUE MERITS 



OF 



THE CONTROf ERS! II 




FOR 



THE CONSIDERATION OF HONEST MEN. 



By PIKE & JOHNSON, 

ATTORNEYS AND COUNSELORS-AT-LAW 



WASHINGTON 

April 20, 1874. 



THE TnuE m:erits 

OF 

THE CONTROYERSY IN ARKANSAS. 



1. Whytock, in the suit of Brooks vs. Baxter, was neither court nor 
judge. Having no jurisdiction, the case was coram non jud ice, before one 
not judge. 

2. The Supreme Court had affirmed Baxter's title to the office in a pro- 
ceeding for a quo tvarranto. It deciding that the judgment of the Legisla- 
ture was final, he has a decision which entitles him to be sustained by the 
President whenever he calls for assistance in the proper manner, 

3. The action of Whytock is entirely indefensible, even if he had juris- 
diction. It was a shameful judicial indecency, no more entitled to re- 
spect than the purchased decision of the fellows made judges by James II. 
to decide that he had the dispensing power. To call such a case up in the 
absence of the counsel of one party, when it was one of such grave import- 
ance, and decide on the demurrer at all, was bad enough. To set at de- 
fiance the decision of the Supreme Court was worse ; but worst of all, and 
mere judicial roguery, was to give final judgment of ouster, when every 
one knows that it should have been respondeat ouster, — Baxter having the 
right to plead over to the facts. 

4. Such action, liable to grave suspicion of being the carrying out of a 
conspiracy, and the earning of a consideration promised, is not only not en- 
titled to respect anywhere, but is a high misdemeanor, demanding impeach- 
ment ; the audacious coup of a creature of faction, — as perfect a nullity as 
if he had given the same judgment of ouster, in the same way, against the 
President. 

5. There is greater danger in these shameless usurpations by the judges, 
than in usurpations of Executives or Legislators. When the courts be- 
come corrupt, and judges pini})S and catamites of political rascalities, the 
State is rotten in its very bones ; and such a "judge" ought to be, like 
Titus Gates, scourged through the streets at the cart's tail until the blood 
runs down to his heels. 

6. The disreputable character and utter nullity of Whytock's action still 
more conclusively appear frum the following facts : 



The Supreme Court of the State had refused to issue a writ of quo wav 
ranto at the instance of the Attorney General, calling upon Governor Bax- 
ter to know by what warrant he held the office of Governor, placing its 
refusal upon the express ground that the question was wholly political, and 
that the decision of the Legislature was final ; and the Court expressly de- 
clared that neither it nor any other Court had any power or jurisdiction to 
go beyond that adjudication and entertain an inquiry in any proceeding 
into Governor Baxter's right to the office. 

And in a civil suit instituted in Whytock's court by a person claiming 
the office of Auditor of Accounts of the State, against the incumbent of 
that office, elected on the same ticket with Governor Baxter, and like him 
decided by the Legislature to have received a majority of the legal votes, 
the Supreme Court had issued a writ of prohibition to Whytock, and by it 
compelled him to refuse to proceed in the suit, ujion the same ground that 
the Legislature's decision was final. 

And this was clear, because the Constitution expressly vests in the Le- 
gislature the power to decide in all cases when any person contests an elec- 
tion to either office. If Brooks did contest the election, the Legislative de- 
cision was final. If he did not, he lost the opportunity. The votes for 
Governor, Lieutenant Governoi', Treasurer, Auditor, Secretary of State, &c., 
are, by the Constitution, to be counted in presence of the two Houses. 
"The person having the highest number of votes shall be declared elected. 
* * * Contested elections shall likewise be determined by both Houses 
of the General Assembly, in such manner as is or may hereafter be pre- 
scribed by law." Under that provision the Courts have no more right to 
inquire who has been elected Governor than a court here has to entertain a 
suit for a seat in Congress by a disappointed contestant. 

7. If, therefore, the President feels bound to enforce the decisions of the 
Courts, it i^ the decisions of the Supreme Court of Arkansas he must en- 
force. He must sustain and support Governor Baxter; or, at least, he 
must not thrust in his soldiery between rightful authority and I'ebellion, to 
prevent Governor Baxter fi'om suppressing the insurrection, and so give aid 
to it, on the i)lea of (^luty to prevent strife and bloodshed. 

8. The President, if it is at all his duty to interfere in a State to enf)rce 
obedience to the decisions of the courts, and if he is bound to recognize as 
Governor him whom these courts decide to be so, is certainly not so bound 
to enforce the judgments of an intl'rior court. They are not of last resort. 
As long as there is I'ight of appeal he cannot act. It is the judgment, final 
and conclusive, of the highest court that he must respect; and so far that is 
in favor of Baxter. 

9. But the President does- not decide for either ! No, but he acts, and 
in (K)ing so prevents the person installed as Governor, ypon the decision of' 



the Republican legislature of the State, from asserting his authority. He 
does decide not to recognize him as Governor. 

10. Now, he can only employ the military power of the United States 
when and as it is authorized by law and under the Constitution ; and that 
is, when he is properly called on to aid the lawful authorities in suppressing 
a rebellion or insurrection which they are powerless to suppress. He has 
no right or business at all to use it, without being so called on, to prevent 
violence or bloodshed. He is not the general keeper of the peace in States. 
If he were, he would be like the chap that went "sloshing round" in a 
light, taking no side in it, but, obeying the Irish injunction, " when you vsee 
a head hit it." 

11. The President then in office did not interfere in Rhode Island "to 
prevent violence and bloodshed" when Dorr took the arsenal, as Brooks 
has taken the State-house. It would have been an act hostile to the regu- 
lar and actual government. Baxter has a perfect right to fire upon the 
troops of the United States if they endeavor to prevent his suppressing the 
insurrection. They will be aiding it. A sergeant would have as plenarv 
a right to interfere " to prevent strife and bloodshed," i. e., to thwart and 
disable the regular Governor, as the commander-in-chief. No one can have 
less than no power. 

12. Somebody is Governor; but the actiim of the President deprives the 
State of executive government altogether. Tiiere is anarchy by his act. 
And, upon the same grounds and by the same right, he will continue this 
anarchy until, after chicanery has exhausted all legal delays, the Supreme 
Court gives another final decision. 

13. The judgment rendered by Whytock must either have its full effect, 
or none. The President cannot notice it at all, unless he regards it as 
final. If he regards it as final. Brooks is Governor — for him. If he does 
not, Baxter is. Whichever is Governor for him (and one or the other must 
be) has the right, and General Grant has no right to prevent its exercise, 
to maintain and enforce his authority by the power of the State. 

14. To put an end to such tricks and judicial scoundrelisms is more im- 
portant than to sustain Baxter or Brooks. Is it to be tolerated that any 
scurvy legal starveling, perched on a Circuit Court bench, siiall make 
and unmake Governors of States ? If the President were sued for recovery 
of his office l^y some one before a Circuit Court of the United States, or 
before a judge of the Supreme Court of the District of Columbia, and Olin 
or AVylie Avere to do what Whytock diti, would General Grant feel bound 
at once to vacate the White House? 

15. And it is even more iniportjuit to put an end to Presidential inter- 
ference in controversies for power in j»State. If the President can do this 



.hing in Arkansas, he can at any time suppress a State government, by pre- 
v'enting its suppression of an armed insurrection. His Postmaster-General 
even withholds the Governor's letters. He, too, decides thereby that Bax- 
;er is not Governor. If he also decides, as the President does, that Brooks 
.8 not Governor, so much the worse. Without deciding that neither is Gov- 
ernor, he cannot withhold the letters from both. 

16. If the States consent that the President can use the military at his 
pleasure, to prevent violence and bloodshed, they will be less than Provin- 
3es of an Empire. Their Government can be at once put in abeyance at 
any time, their Governors be virtually deprived of powers, and they them- 
selves be paralyzed. A Government that cannot repel an attempt to destroy 
t, but must stand inactive at the nod of the President, and see his bayonets 
irraycd against it to encourage insurrection, is simply contemptible. 

17. By the action of the President, the only State Government now in 
exercise of authority in Arkansas, is the military Government under Colonel 
Rose of the Eegular Army of the United States. All the other Executive 
Dfficers, Lieut. Governor, Secretary of State, Auditor and Treasurer, are, 
)i' course, suppressed by the Federal cannon and bayonets, with the Gover- 
nor. The Executive power of the State is confiscated, or is seized into the 
bands of Colonel Rose, like an estate put into the hands of a receiver. 

18. It is said by the superserviceable press, that Governor Baxter should 
peacefully await the decision of the Supreme Court. What is he to do, 
then? To surrender the government for the time, let all the officers ap- 
pointed by him be displaced, and sneak away out of men's sight? Will he 
not do that, if he dismisses his forces ? Or is the stains quo to be maintained 
until final decision, each party armed remaining in its camp, and neither 
Baxter nor Brooks able to do any official act with effect? The expenses 
incurred by the State are at least twenty-five thousand dollars a day, and 
as the President causes their continuance, the United States Avill, in com- 
mon honesty, be bound to i)ay them. 

11). Baxter was elected upon a ticket supported and arranged by Senator 
Clayton and his coadjutors and dependants — the regular Republican ticket. 
Brooks ran upon the Greeley ticket, heading a coalition of Liberal Repub- 
cans and Democrats. If the Legislature decided fraudulently, it was 
niaui[)ulated by Clayton, for both Houses were overwhelmingly Republi- 
can. The men who are now seeking to oust Baxter are the men who put 
him wliere he is; and who, if there was fraud, were the doers of it. 

20. The reason for their ciiange is one that is most honorable to Baxter, 
It is that he has endeavored to adnunister tiie government of the State 
honestly, to allow every man to vote who is entitled to vote, and to prevent 
those engaged in robMiig tlie State liX)iu plying their j)rofitable em[)loynicnt 



auy longer. He never was a Democrat. He was a Whig all his life until 
he became a Re})ublicau ; and he is as true a Republican now as ever ; for 
which reason many leading Democrats have all the time opposed him bit- 
terly. The simple truth is that he is in the way of those who mean to 
cheat the people of their right to elect those who arc to govern and repre- 
sent them ; which they can only do by controlling the registry of voters and 
the ballot-boxes ; and if the President prevents Governor Baxter from assert- 
ing and maintaining his authority, he helps the men who mean to continue, 
if they can, a system that by force and fraud robs a people of their rights, 
and imposes on them for rulers and representatives men rejected by them 
at the polls, and imposed upon them in spite of their votes. 

21. General Grant cannot afford to let himself be made the involuntary 
instrument of political chicanery and rascality by sustaining an insurrec- 
tion which, but for his aid, would have been a contemptible fiasco and 
abortion. It is the development of a wicked plot, arranged to enable a few 
desperate adventurers to retain ill-gotten power, and carry onward to suc- 
cessful completion schemes of spoliation and rapine ; and it would never 
have been attempted but for the hope and ex^^ectatiou of aid, direct or in- 
direct, from Washington. 

Washington, Aj^ril 20, 1874. 



'^ 



ADDENDA. 



The person ^vllo gave the judgineut whicli has caused insurrection and 
war in Arkansas, and u])on whose guilty head is already the blood of one 
of the truest men and best citizens of Arkansas, is spoken of in the forego- 
ing poinls in his character of Judge alone. His character as a man is not 
in issue, nor impugned. No body thinks or cares what were the personal 
characters of the Judges who sold their judicial consciences to James II, 
and endeavored to compel a Jury to convict the Seven Bishops of libel. 

Sir Robert Wright, Lord Chief Justice, and Mr. Justice Allybone, the 
former of whom " was elevated to the office solely on account of his unscru- 
pulous servility," and the latter owed his place to the very dispensing 
power as to the legality of which he was in that case called on to decide, 
may have been very honest men iq. private life; but they were none 
the less judicial knaves, for the acts they did were knavish acts. The tree 
is judged by its fruits. " Do men gather grapes of thorns or figs from 
thistles?" Do honest Judges render immediate judgment of ouster, on 
overruling demurrer to the complaint or declaration, without opportunity to 
the defendant to elect whether he will plead or stand u^on his demui-rer? 
Do they assess the damages, for the amount of salary and fees received, at 
the same instant, without a jury to assess damages, or proof, or opportunity 
to the Defendant or his Counsel to be heard ? 

An eminent lawyer of the State says, in a letter to the Counsel here of 
Governor Baxter, "The Circuit Judge rendered a clandestine judgment, 
which furnished a mob headed by Brooks, the preconcerted pretext for 
taking forcible possession of the Executive Office. The causes stated in 
the motion for setting aside the judgment are true. That the judgment 
was not only clandestinely rendered, but is void for want of jurisdiction, 
there can be no doubt. The whole thing is a political conspii'acy, to get 
clear of Baxter, and prevent our people from having fair elections, which 
would result in ousting the robbers." 

This Judge shall be judged by the record. It will show that his acts 
have been fitly characterized in the preceding points, and that those who 
have rushed into 2:)rint to defend and praise him have in their exuberant 
zeal taken leave of prudence and discretion. 



The following statement of the case is from the Little Rock Gazette of 
Friday, the 17th of April. It is given as a condensed and correct sum- 



raary of the facts, and to prove it so, copies of the material portions of the 
record follow it here : 

"When the declared result of the election in 18T2 was first made public, an effort was 
made in the Federal court by the Reverend Joseph Brooks and some of the candidates, 
with him on the reform ticket, to forestall the action of the legislature in counting the 
votes and declaring the election; but the district judge here refused to 'Durell' the 
State of Arkansas, and the votes were counted and the result declared by the legisla- 
ture. The Baxter ticket was duly installed in office. 

" Brooks then commenced a contest in the legislature in the manner prescribed by 
law. Tlie legislature rejected his petition. 

" Several suits were then brought in the State courts. The defendants, in all the 
CHses, demurred to these actions, claiming that the law conferred the duty of counting 
votes and declaring the result of elections for State officers on the legislative dep;-irt- 
ment of the Government ; and that the legislature having exercised this power, and 
afterwards refused to reconsider or open the question h\ way of contest, that its action 
was conclusive, and their rights to the offices they had legally established. 

"The Supreme Court, in the case of the Attorney General on the relation of Brooks 
against Ba.xter, sustained this view upon an application for (j[ito warranto; and again, 
in the case of Wheeler vs. Berry, the Supreme Court issued a writ of prohibition, re- 
straining the circuit court of Pulaski from proceeding in the case of Berry vs. Wheeler, 
for want of jurisdiction. 

"The case of Brooks against Baxter for the office of governor, and the emoluments 
thereof, was then pending in circuit court, on a demurrer to the jurisdiction of the 
court, and these two decisions of the supreme court were supposed to settle the ques- 
tion. Brooks' attorney repeatedly promised to dismiss the case, conceding that the 
question was settled by these decisions. On last Saturday. Brooks' attorney, Whipple, 
said to Judge English, of counsel tor Baxter, that Mr. Brooks was unwilling to dismiss 
the case, and that he (Whij)ple) did not like to take the responsibility of dismissing the 
case against the wishes of iiis client, and prop sed to submit the demurrer. The sus- 
picions of Judge English were slightly aroused at this change of front. He replied that 
the Federal court would be in session this week, that Judge Compton was sick and 
absent, and that he ^ould probably want to argue it, and proposed that they should 
argue and submit the demurrer at some day early after the adjournment of the United 
States cotirt. This was distinctly agreed to. 

"On Monday last, Judge Compton still absent, and Judge English at home sick, 
Whipple submitted the demurrer to the court without argument, saying that this would 
be agreeable to the governor and his attorneys, and on Thursday morning, while Judge 
English was in attendance on the United States court, Judge Compton still sick and 
absent. Judge Whytock announced his decision, overruling the demurrer, and stated 
that he had examined the question, and found that an appeal and supersedeas would lie, 
and that he knew the governor would take an appeal, and that he would render a final 
decision at once. 

"By eveiy principle of pleading, the proper judgment upon overruling a demurrer is, 
that the demurrant sh ill answer over; and such is the express provision of the 
Arkansas Code of Practice. And in practice, we believe that time , is always allowed the 
demurring party for that purpose. In this instance, neither the governor nor his attorney 
wa.s present, or had notice of the decision, or an opportunity to answer the com- 
plaint. Notwithstauding tliis, a final judgment of ouster from office, and for a fixed 
sum for emoluments was entered. Even if the judgment by default had been a proper 
one, a default is never a confession of the amount of damages claimed, and a writ of in- 
quiry and evidence would have been necessary to ascertain the amount. The court 
could not judicially know whether Baxter had ever received a dollar of his salary or 
how much." * * -x- ***** * 

"The judgment of the court has never been executed. No writ was issued and the 
authority of the executive officer of the court. Sheriff Oliver, has never been invoked. 
Brooks, it is said, provided himself with a copr/ of this judgment and, accompanied by 
Catterson, as a jiretended adjutant general, he went to the executive office and ejected 
Gov. Baxter by force. We understand the sheriff was not present. Certainly no ])ro- 
cess of induction, institution or ejectment or any other kind of writ was ever issued to 
bim. 

" Brooks and Catterson, and a mob of armed men, with no legal authority whatever, 
went into the executive office within a few minutes after the decision was rendered, and 
forcibly ejected Gov. Baxter, and took possession of his office and archives." 



The Counsel for Governor Baxter, as will be seen by the record, filed 
motions to set aside the judgment, and to amend the record so as to sliow 
that the demurrer was submitted in the absence and without the l^nowl- 
edge of the Governor or his Attorneys. 

On Friday, says the Gazette of the 18th, 

"The judge made short work of the matters. He overruled the motion to set aside 
the judgment, but sustained that to change the record, after a fashion. The original 
entry in the record reads as follows: 

' And now comes the parties, and the demurrer of defendant heretofore filed herein is 
submitted to the court and by the court taken under advisement.' 
" The following is the correction (?) of the same : 

' And now comes the plaintiff by his attorneys, and the case being subject to call by 
the plaintiff, and it apaearing to the court that the defendant by his attorneys was con- 
senting to the submission of the demurrer of the defendant to the complaint of the 
plaintiff herein, the same is submitted to the court and by the court taken under ad- 
visement.' " 

Soon afterwards, the following Resolutions were adopted and signed by 
members of the Little Rock Bar. Of the signers, Judge English was for 
many years Chief Justice of the State, Judge Corapton, an associate Judge 
of the Supreme Court, U. M. Rose was Chancellor before the war, A. H. 
Garland has long been one of the foremost members of the Bar, and once 
elected Senator of the State, and George A. Gallagher is one of the oldest 
and ablest lawyers in the State ; and all these, and many of the others are 
men of the very highest character for integrity and honor. 

" RESOLUTIONS. 

^^ Resolved, That it is the deliberate sense of the members of the Little Rock bar here 
signing, that the late act of the circuit court of Pulaski county, in rendering a judg- 
ment in the case of Brooks vs. Baxter, at a time when the case was not set for trial ; at 
a time when it was known and foreseen that his counsel would be absent, and when it 
had been announced that no business during the week would be taken up unless by 
consent, involving the exercise of jurisdiction in a case in which the Supreme Court 
had twice, in well-considered opinions, decided that the Circuit Court had, under the 
consiitution and laws of the State, no jurisdiction, is one of the most extraordinary 
acts in judicial history; that the judgment rendered therein is wholly null ami void 
for the want of jurisdiction • is not a judicial act, but merely the [irivate act of the indi- 
vidual e.vercising the functions of Judge, and of the attorney of the plaintilf who was 
accessor}' to said proceedings, and does not alford, in a legal point of view, the slightest 
pretext or color for the revolutionary proceedings which have been ostensibly based 
upon it. 

"A. D. Jones, J. W. Martin, 

E. H. English, F. W. Compton, 
S. R. Cockriil, Newman Erb, 
John Fletcher, Thos. Fletcher, 
L. A. Pindall, Dick Gantt, 

F. M. Parsons, Sam W. Williams, 
J. M. Smith, U. M. Rose, 

R. A. Watkins, George A. Gallagher, 

C. B. Moore, Z. P. H. Farr, 

James M. Pomeroy, Sol. F. Clark, 

R. C. Newton, Geo. L. Bashara, 



B. S. Johnson, 
Geo. E. Dodge, 
W. L. Terry, 

' J. M. Moore, Secretary,'" 



Robert A. Howard, 
John Green, 
G. B. Reardon. 

" A. H. GARLAND, Fresident. 



FROM THE RECORD, 
ilaski Circuit Court. 



" State op Arkansas, \ j „ , 

" County of Pulaski, / 

" Pleas before Honorable John Whytock, Judge of the Pulaski Circuit Court, at the 
June Term, 1873, the October Term, 1873, and the February Term, 1874, of said Court, 
in the following words, to wit: 

" Joseph Brooks, Plaintiff, 



"Elisha Baxter, Defendant. J 



Complaint. 



Monday, June 16, 1873. 



" Comes the Plaintiff by Messrs. Whipple, Benjamin k Burton, and by leare of the 
Court files his complaint herein. 

* * * * 



" October 8, 1873. 
* * • * * 

"Comes the Defendant by E. H. English, Esq., and Messrs. Compton, Martin & 
Bishop, his attornej's, and files herein his demurrer to Plaintiff's complaint. 
" The demurrer above referred to is in words and figures as follow.=», to wit : 
" In the Pulaski Circuit Court. 
"Joseph Brooks, Plaintiff, "| 

" vs. V Demurrer. 

" Elisha Baxter, Defendant. J 

" The defendant demurs to the complaint herein ; because it appears upon the face 
of said complaint — 

"That the Court has no jurisdiction of the subject of this action. 

" Wherefore, the defendant prays judgment. 

" That the plaintiff be barred from maintaining said aetion. 

"E. H. ENGLISH, 

" COMPTON, MARTIN & BISHOP, 

" Attorneys of Defendant." 



"Wednesday, November 5, ISYS. 
" Joseph Brooks 1 
"vs. \ 

" Elisha Baxter, j 

" Came the said parties by their said attorneys, and on motion of the plaintiff it is 
ordered that this cause be continued. 

"JOHN WHYTOCK, 

" Circuit Judge." 



"Monday, April 13, 1874. 
" Joseph Brooks "j 
"vs. [■ 

" Elisha Baxter, j 

" And now comes the parties, and the demurrer of defendant heretofore filed herein, 
)3 submitted to the Court and by the Court taken under^advisemenl." 



" Wednesday, April 15, 1874. 
" Joseph Brooks, plaintift', 

" vs. 
" Elisha Baxter, defendant. 

" The demurrer filed by the defendant to the complaint of the plaintiff having here- 
tofore been submitted to the Court and taken under advisement, and the Court being 
suftlciently advised of the law arising thereon, overrules the said demurrer, and the said 
defendant failing to answer, and there being no answer to said complaint, the same is 
taken for confessed : 

" It is, therefore, ordered and adjudged that the said defendant, Elisha Baxter, be 
ousted from the office of Governor of the State of Arkansas, mentioned in the complaint 
in this action. 

" And it is further adjudged that Joseph Brooks, named in the complaint, and plain- 
tiff in this action, is, and he is hereby declared to be, entitled to the said office of Gov- 
ernor of Arkansas, and all books, papers, and other appurtenances thereto belonging, 
by virtue of the election in said complaint mentioned. It is also further ordered and 
adjudged that the said plaintiff recover of the said defendant the sum of two thousand 
two hundred and eighteen dollars, with interest thereon at the rate of six per cent, per 
annum from the date until paid ; also his costs iti this behalf expended for which he 
may have execution." 

* * * * 

" Thursday, April 16, 1874. 
" Joseph Brooks 



" Elisha Baxter. 

" Comes said plaintiff, by W. G. Whipple, Esq.. and Messrs. Benjamin and Burton, 
his attorneys, and comes said defendant by E. II. English atid F. W. Compton, his at- 
torneys ; and, thereupon, said defendant files herein his motion to correct the record of 
the proceedings in this cause on the 15lh day of A]iril, 1874, and also files his motion 
to set aside the judgment rendered in this cause on yesterday, the 15th day of April, 
1874." 

" The motion to amend the record above referred to is in words and figures as fol- 
lows, to wit : 

" Joseph Brooks, pl'ff., 

" vs. 
" Elisha Baxter, deft. 

" The defendant moves the Court to have the record entry made in this cause on 
Monday, showing the submission of the demurrer, corrected, in this, to wit : 

" The entry states that the parties came and submitted the demurrer, when in fact 
the defendant was not present, nor were his counsel or either of them, present ; one of 
them was during the whole day confined to his bed with illness, and the other had no 
notice that the demurrer would be called up, nor did the defendant, or either of his 
counsel, have any notice that the demurrer would be called up and submitted. 

" COMPTON & E>iGLlSii, for DefL" 

" And said motion to set aside judgment, above referred to, is in words and figures 
as follows, to wit : 

" Pulsaka Circuit Court, Feb. Term, 1874. 
" Joseph Brooks, pl'tifF, \ 

" vs. I Suit to contest office of Governor. 

" Elisha Baxter, deft., j 

" The defendant moves the Court to set aside the judgment rendered in this cause on 
yesterday, on the following grounds : 

" 1. The demurrer of the defendant to the plaintiff's complaint was called up by the 
plaintiff's counsel and submitted, in the absence and without the knowledge or consent 
of the counsel for defendant. 

" 2. The demurrer was called up and sutimitted on a day other than the day fixed by 
the rules of the Court for taking up and arguing demurrers and motions, and on a day 
when defendant's counsel had no reason to suppose it could or would be taken up, and 
when one of them was confined to his bed with severe illness. 

" 3, The counsel of the defendant understood the Court to announce from the bench 



6 

on Saturday last, that inasmuch as the Federal Court would be in session the then 
coming week, that no cause would be called during this week, in the absence of coun- 
sel engaged in the Federal Court, hence the counsel of defendants, having business in 
the Federal Court, did not deem it necessary to attend the 3ourt to look after this or 
any other cause in whicli they were retained, and were absent when said demurrer was 
called up and submitted, and when the final judgment was rendered. 

"4. On the overruling of the demurrer the court proceeded at once to enter final- 
judgment, when the judgment should have been that the defendant answer over. 

'',5. The court rendered a final judgment on overruling the demurrer, in the absence of 
the counsel for defendant, and without giving the defendant any time or opportunity or 
option to answer over. 

"6. The court proceeded to assess damages and render a money judgment«against 
the defendant, without any proper submission to the court or a jury to ascertain the 
damages on proof. 

"7. The court had no jurisdiction of the subject matter of the suit, and no authority 
to answer any judgment, but one merelj' dismissing the suit for want of jurisdiction. 

"Wherefore defendant moves the court to set aside said judgment. 

" COMPTON & ENGLISH, 

" For Defendant. 
* * * * 

" State of Arkansas, ") 
" County of Pulaski, p*' 

" I, W. F. Blackwood, Clerk of the Circuit Court, within and for the county of Pu- 
laski and State of Arkansas, do hereby certify that the foregoing twenty-one (21) pages 
contain a true and perfect transcript of the record of the proceedings had in said cause 
therein mentioned, up to and including proceedings of April 16, 1874, as the same ap- 
pear of record in my office. 

" Witness my hand and seal of said Court on this 17th day of April, 1874. 
[Seal of Pulaski C. C] " w! F. BLACKWOOD, 

" Circuit Clerk." 



The Code of Practice in force in Arkansas makes this provision : Plead- 
ings in Civil Actions, see. 154:, page 61 : " Upon a demurrer being overruled, 
the party demurring may answer or reply." This gives him the legal right 
to do what the Courts always allowed ; i. e., to withdraw his demurrer and 
plead. And to give a final judgment, immediately on overruling the de- 
murrer, and in the absence of himself and counsel, was to deprive him arbi- 
trarily of this right, and render a " snap judgment." If a party has a 
right to plead, the Court must give him time to do it, and its judgment 
(which at common law was final) must be, like that on overruling a plea 
in abatement, that he plead to the complaint, (which is a respondeat ouster, 
that he answer over,) or that he elect within a reasonable time specified 
whether to plead or not. At the common law, the judgment on a demurrer 
to the declaration overruled was in chief for the plaintiff"; but the Courts 
always gave the defendant, if he desired it, leave to withdraw the demurrer 
and plead. In Arkansas he always had a right to do it ; and therefore final 
judgment could not be given against him until he had opportunity to elect. 
Tlie statement in the points on this subject is inadvertently too broad. 

The suit of Brooks was instituted under chapter xii of the same code, 
which (sec. 522) provides that " in lieu of the ivrits of scire facias and quo 



xmrranto, or of an information in tlie nature of a quo warranto, actions by 
l^roceediug at law may be brought to ... . iircveut the usurpation of an 
office or franchise." 

Sec. 525. " Whenever a person usurps an office or franchise to which he 
is not entitled by law, an action by proceedings at law may be instituted 
against him, either by the State or the party entitled to the office or fran- 
chise, to i^revent the usurper from exercising the office or franchise." 

Sec. 520 " The Court shall have power to enforce its judg- 
ment by causing the books and papers and all other things pertaining to 
the office or franchise to be surrendered by the usurper, and by preventing 
him from further exercising or using the same, and may enforce its orders 
by fine and imprisonment until obeyed." 

The Constitution of Arkansas (art- vi., sec. 19) provides that the returns 
of every election for Governor, Lieutenant Governor, Secretary of State, 
Treasurer, Auditor, Attorney General, and Superintendent of Public In- 
struction shall be opened and published during the first week of the session 
in the presence of the members of the Legislature, who shall declare elected 
the person having the highest number of votes ; and adds, " Contested elec- 
tions shall likewise be determined by both Houses of the General Assembly in 
such manner as is or may hereafter be prescribed by law." 

This power of decision, this jurisdiction of the question who is elected, is 
exclusive, precisely as the power of each House is exclusive, to decide as to 
elections of its members. For art. v., sec. 14 provides, simply, that each 
House shall "judge of the qualifications, election, and return of its own 
members," without adding that this shall be exclusive ; and the Constitu- 
tion of the United States (art. i., sec. 5) makes the same simple provision. 
No one doubts that the Courts have no power to review the judgment of 
either House, of the Congress, or of the State Legislature, as to elections 
of its own members ; and no man of common sense can believe that the 
State law above quoted, as to usurpation of office, any more had in view an 
election for the office of Governor than one for member of the Legislature ; 
nor that if the Courts can inquire as to one, they can with equal right in- 
quire as to the other, which every one knows they cannot do. 

The outrage committed by Whytock, in depriving Governor Baxter of 
the right to plead over secured to him by law, cannot be appreciated with- 
out knowing the fact that the application for quo ivarranto, on which the 
Supreme Court decided that neither it nor any other court had power or 
jurisdiction to pass upon or consider the question whether Baxter or Brooks 
had been elected, after the decision of it by the legislature was made, on the 
relation of Josej^h Brooks. He was therefore a party to it, and the decision 
could have been pleaded in bar, in his subsequent suit by complaint in 
Whytock's court, in lieu of an information in nature of a quo ivarranto. It 



was necessary therefore to the success of the conspiracy to give him no 
opportunity to plead it, and to deprive him of the right to plead, which 
the law gave him. 

We do not quote the decisions of the Supreme Court, because they can- 
not be got at. The Chief Justice of the Court, who dissented, has taken 
possession of them unlawfully, and copies cannot be had. The proof of this 
is subjoined. 

" Transcript of Opinion and Judgment of the Supreme Court in 

" State on tlie relation of Joseph Brooks "| 

" vs. > On quo warranto. 

" Elisha Baxter. j 

" And 

" Transcript of Opinions and Judgments of the Court in 

" Berry. 



^ Prohibition. 
" Wheeler and Whytock, J. 

" Mr. N. W. Cox, 

" Clerk, &c.: 
" Please send me the certified transcripts by bearer; also your bill. 
" Yours truly, 

" DICK GANTT. 
" April 18, 1874. 
" Endorsed as follows : 
" Judge McClure has possession of original, and I could'nt get them to make copies. 

" N. W. COX. 
" A true copy : 

" Frank Strong, 

" Adjutant Gen'l, Arkansas." 

That is the case, in all the nakedness of its deformity, indecency, and 
ugliness. Let the honest men of all parties decide upon it. The questions 
it presents are above all party considerations, as they are above all per- 
sonal ones. The facts justify all that has been said in the preceding points 
of John AVhytock in his character of judge. The man must be wrongly 
constituted wliouv they do not move to indignation. It is idle to babble of 
"malignant pens." Undoubtedly those of Juvenal and Tacitus were so 
stigmatized by the men on whom they inflicted the punishment that all the 
Avorld has ever since approved. A Judge who makes the law a harlot, sell- 
ing her favors to the lewdness of political rascality, cannot be heard to 
plead in extenuation his private virtues, nor is his crime less when the mo- 
tive of his judicial debauchery is his zeal in the interest of faction, than it 
would be if he sold his jutlgmeuts for mt)ney. "When a Court accepts Fac- 
tion for its i>aramour, there is a genesis of syphilitic poison that transfers 
itself into the veins, and rots the bones, of the attlicted State. 

PIKE & JOHNSON, 
Of Counsel for Governor Baxter. 

Washington, Ajyril 23, 1874. 



Arkansas Controversy. 



FURTHER ADDENDA 

TO THE 

AEGUMENT FOR GOV. BAXTER, 



" C." telegraphs to the WashiDgton Chronicle, on the 29th of April, 
from Little Rock — 

"The general impression seemed to be that tlie Supreme Court will sustain Brooks, 
as a majority have alreadj- teleoraphed the President that they regard the judgment of 
the Circuit Court a valid judgment until set aside or reversed." 

And on the same day it telegraphed to New York — 

'•Brooks and Baxter, each signing himself Governor of Arkansas, have each pub- 
lished a letter in a paper here this morning reviewing the present polilica] situation 
and the causes which led thereto. Baxter repeats the assurance that he will abide 
by the decision of the Legislature, which he has called to dispose of the question of 
the disputed title to the governorship, and whi"h, he says, is the only tribunal of com- 
petent jurisdiction. Brooks, on the contrary, says the Legislature has not jurisdiction 
over the present case, and with a view to dispose of the dispute as quickly as possible 
he entered mi appeal in order to bring the matter before the courts in June, the earliest 
practicable time." 

Brooks has performed an extraordinary exploit, if he has appealed to the 
Supreme Court from a judgment rendered in his own favor. That is a fair 
specimen, however, of the despatches sent in the interest of Brooks. 

So it is reported that three of the Judges, i. e , McClure, who dissented 
in the Quo Warranto case, and Searles and Stephenson, have telegraphed 
to the President or Attorney General, that Whytock's judgment is valid 
until reversed. If that is true, and if they are ready to sustain the clandes- 
tine judgment, then their conduct is too indecent to need comment. 

The judgment is not erroneous. It is void, for want of jurisdiction, as the 
Supreme Court has expressly decided it would be. It does not need to be 
reversed. It is impeachable as void, collaterally, anywhere. It is simply 
no judgment at all. 

We now have, as printed in a newspaper at the time, the decision in the 
ease of " The State on the relation of Joseph Brooks vs. Elisha Baxter," on 
application for leave to file an information and have a writ of Quo AYar- 
ranto. It concludes as follows : 



"Under this constitution, the determination of tlie question as to wlietlier a person 
exercising tlie office of Governor lias been duly elected or not is vested exclusively in 
the General Assembly of the State, and neither this or any other State court has juris- 
diction to try a suit in relation to such contest, be the mode or form what it may be ; 
whether at the suit of the Attorney General or on the relation of a claimant through 
him, or by an individual alone, claiming a right to the office. Such issue should be 
made before the General Assembly. It is their duty to decide, and no other tribunal 
can determine that question. We are of the opinion that this court has no jurisdiction 
to hear and determine a writ of quo warranto for the purpose of rendering a judgment of 
ouster against the Chief Executive of this State, and the right to file an information and 
issue a writ for that purpose is denied. 

" L. Gregg, 
" il. L. Stephenson, 
"E. J. Seakle. 
" Certified to by N. W. Cox, Clerk Supreme Court." 

The motives that induce Messrs. Clayton and others to desire to oust 
Baxter now, are transparent. In October, 1873, they made quite other as- 
, sertions to the people of Arkansas, and gave quite other assurances to Gov. 
Baxter. Read what they then said to the people and to him : 

EXTRACT 

FROM AN ADDRESS PUBLISHED BY THE REPUBLICAN 

STATE COMMITTEE, IN THE LITTLE ROCK REPUBLICAN, 

ON THE 8th day OF OCTOBER, 1873. 

" The recent decision of the Supreme Court in the case of the State of Arkansas 
against Elisha Baxter, the disbandment of the entire militia force of the State, and the 
late change in the management of the central organ of the republican party at Little 
Rock, make it necessary that the State Central Committee should again issue an address 
to the people. 

" B)/ (he decision to which reference has been made, it is distinctly held that the determination 
of the qiteslion ichether a person exercising the office of Governor has been duly elected or not, '■" 
vested exclusively in the General Assembly of the State, and that neither the Supreme nor 
any other State court has jurisdiction to ixj a suit in relation to such contest, be the 
mode or form what it may, whether at the suit of the Attorney General, or on the rela- 
tion of a claimant through him, or by an individual alone claiming a right to the 
office. This decision was promptly followed by the dismissal of the suit brought in the 
Circuit Court of Pulaski county by the State of Arkansas against Elisha Baxter, and 
now at last we can congratulate the people of the State upon the undoubted termina- 
tion of this gubernatorial warfare. The legislature has acted in the premises ; its de- 
cision is final, and Gov. Baxter's tenure of the office he holds is fixed and irrevocable. The 
action of the Supreme Court and the legislature settles all vexed questions calculated 
to disturb the peace of the State, and Gov. Baxter, reflecting the policy of the republi- 
can party, to secure peace, quiet, and order, seized upon this, the first opportunity pre- 
sented since the organization of the State government, to muster out the entire militia 
force of the State. 

" No well-disposed citizen, whatever his political faith may bo, can fail to indorse 
and commend tins action of the Governor. It attests the good faith and high purpos 
of the republican party on all questions affecting the interests of the people, and is an 
earnest of the efforl- that Gov. Baxter and the Republican party are making to bring 
the State of Arkansas to as high a condition of peace, law, and order, as is enjoyed 
by the most favored State in the Union. 

" All citizens are therefore called upon to preserve peace in their respective localities. 
Let no man be jeopardized in property or life. Let the expression of opinion on m"t- 
ters of public concern be free and unrestrained, and the laws vigorously and impar- 
tially enforced. 

" By reason of the late change in the management of the Little Rock Republican — 
the central organ of the party — certain personal embarrassments, which it is of no ser- 



vice now to recount, have been removed, and that paper hereafter will not only reflect 
the general policy of the party, but will also be fully in accord with the present admin- 
istration of the government of the State. 

" POWELL CLAYTON, Chairman. 
JAMES TORRANS, Secretary. 
0. A. HADLEY, 
J. T. WHITE, 
S. W. DORSEY, 

(Bv John M. Peck, proxy.) 
E. D. HAM, 

(By J. M. Johnson, proxy.) 
JOHN N. SARBER, 
FRANCIS SAWYER, 
E. R. WILEY, 

(By P. C. Dooley, proxy.") 

"New York, June 3, 1873. 
"Gov. Elisha Baxter: 

" You have the unqualified support of myself and friends. The revolutionary pro- 
ceedings instituted will not be sustained by the people. 

"S. W. DORSEY." 

" New York, June 3, 1873. 
" His Excellency, Elisha Baxter : 

" The quo warranto proceedings against you have been inaugurated without my 
knowledge or approval, and are in my opinion unwise and highly detrimental to the 
interest of the State. My judgment did not approve your late action, because I did not 
believe that such a move was seriously contemplated; and even if contemplated, I re- 
garded the calling out of the militia as premature. Nor would I now advise any show 
of force, unless a forcible attempt should be made to oust you. I believe you are the 
legitimate governor of Arkansas, and as much as I regret to see our State disgraced 
abroad by distractions at home, I hope you will stand firm, regardless of results. 

"POWELL CLAYTON." 

Certainly it must require an ample supply of impudence and a great ab- 
sence of the sense of shame in any of the men who signed the foregoing 
address, to go before the President of the United States and ask him to 
help them get Baxter out of the office in which the Republican Legislature 
placed him and the Supreme Court maintained him. Certainly no gentle- 
man would think General Grant wanting in courtesy, if he would order 
them shown to the door, and to say to them : " It is evidence of a singular 
obtuseness of perception in you, and of very slight respect for me, to come 
to prove to me by the judgment of an inferior Court, given in the dark, 
and in defiance of not only the express decisions of the Supreme Court but 
of the well known law everywhere, that Governor Baxter was not legally 
elected and the decisions of the Legislature and Supreme Court were not 
final, after you have published, not seven months ago, that he was Gover- 
nor and that the question was finally settled and concluded. Am I a nose 
of wax, to be moulded by you into any shape you please, or do you think 
that I will violate law and infringe upon individual rights, to give efiect 
to your wishes and subserve either your private or your political interests ? 
I am not a dog, that I should do this thing. Begone !" 

PIKE & JOHNSON, 

Counsel for Governor Baxter. 
Apeil 30, 1874. 



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